That was the question Deborah Hersman, chair of the National Transportation Safety Board (NTSB), posed to a panel of industry representatives back in April about how the rail industry had missed the fact that Bakken oil is more explosive than traditional crude oil.

“How do we move to an environment where commodities are classified in the right containers from the get go and not just put in until we figure out that there’s a problem,” Hersman asked during the two-day forum on transportation of crude oil and ethanol. “Is there a process for that?”

The first panelist to respond was Robert Fronczak, assistant vice president of environmental and hazardous materials for the Association of American Railroads (AAR). His response was telling.

“We’ve know about this long before Lac-Megantic and that is why we initiated the tank car committee activity and passed CPC-1232 in 2011,” Fronczak replied, “To ask why the standards are the way they are, you’d have to ask DOT that.”

So, now as the new oil-by-rail safety regulations have been sent from the Department of Transportation (DOT) to the White House’s Office of Information and Regulatory Affairs, it seems like a good time to review Hersman’s questions.

How did we miss this? Is there a process to properly classify commodities for the right container before they are ever shipped?

Last year, Jeffrey Wiese, an official with the Pipeline and Hazardous Materials Safety Administration (PHMSA) told an industry conference that the regulatory process was “kind of dying.”

According to InsideClimate News, Wiese even mentioned that PHMSA was working on a YouTube channel to “persuade the industry to voluntarily improve its safety operations,” as this was one of the only ways it could attempt to improve safety.

PHMSA is the organization in charge of developing new regulations regarding the transportation of crude oil in rail tank cars.

This week, the Department of Transportation, along with PHMSA, announced its new safety advisory regarding the rail transport of Bakken crude oil. As another example of how the regulatory process is “kind of dying,” the advisory includes no new regulations regarding rail tank cars but “strongly urges” the oil and rail industry to use safer tank cars.

The advisory makes it clear that oil companies only have to be as safe as they can be while using the existing tank car “fleets” and that they should avoid using older DOT-111 cars to “the extent possible.”

The dangerous DOT-111 tank cars currently make up approximately 70 percent of the existing fleet of tank cars used for moving oil by rail.

This advisory is just the latest in a long stream of recent safety measures, both voluntary and regulatory.

On August 20, 1969, two Penn Central commuter trains collided head-on near Darien, Conn. Four people were killed and 43 were injured. The crash led the National Transportation Safety Board (NTSB) to recommend that railroads implement new safety technology called positive train control — a system for monitoring and controlling train movements to increase safety.

The NTSB first recommended positive train control in 1970. In 2008, after another fatal train collision that killed 25 people, Congress finally passed the Rail Safety Improvement Act, which mandated positive train control be implemented by the railroad industry by the end of 2015.

Fast-forward another six years to multiple congressional hearings in recent months, during which the railroads have informed Congress that positive train control simply won’t be implemented by the end of 2015. It’s been 44 years since the NTSB first recommended positive train control to improve rail safety in the U.S. and it is still not being used.

Just as you aren’t supposed to try to put out an oil fire in your kitchen with water, you aren’t supposed to try to put out a crude oil fire with water either. But in Lac-Megantic, Quebec, that is all firefighters had for the first two days of battling the catastrophic oil-by-rail fire last July.

The fire burned until 8,000 gallons of firefighting foam finally arrived from Toronto, an eight-hour drive away. Forty-seven people were killed in the accident.

This lack of foam not only makes the job of first responders impossible when fighting these crude oil fires — it also greatly increases the environmental damage. While the Lac-Megantic firefighters were using water, they were helping the oil flow into the nearby lake and river. One and a half million gallons of oil were spilled.

At a recent Senate Appropriations hearing on oil-by-rail safety, National Transportation Safety Board (NTSB) Chairman Deborah Hersman was very clear about the state of preparedness in the United States when it comes to addressing accidents like the one in Lac-Megantic.

“No community is prepared for a worst-case event,” Hersman said.

One of the main reasons no community is prepared for a worst-case oil-by-rail event is the loophole that exempts oil companies from needing comprehensive spill response plans in place. The NTSB has recommended this be changed, but regulators at the Department of Transportation aren’t moving to do so.

Communities are especially vulnerable to oil-by-rail accidents because they have not been trained to fight crude oil fires and, even if they had been, they don’t have the necessary foam.

A combination of “human error” and miscommunication culminated in the reckless release of over 843,000 gallons of Albertan diluted bitumen from the Enbridge Line 6B into the Kalamazoo River. The investigation found that 81 percent of the tar sands oil spill was the result of the company’s baffling response to rupture alerts, which prompted monitors to pump additional oil into the line – twice – rather than close the line’s remote controlled valves. The rupture went undetected for over 17 hours, leading to the most expensive onshore clean up effort in American history, with a price tag approaching $800 million.

In her opening remarks, NTSB’s chair Deborah Hersman likened Enbridge to the incompetent Keystone Kops of silent film, suggesting their bewildering response amounted to nothing more than a pantomime. “Why didn’t they recognize what was happening,” Hersman asked. “What took so long?”

According to the Board’s investigation, Enbridge knew about the ailing condition of Line 6B for at least five years before the rupture. A 2005 report identified about 15,000 defects with the aging pipeline that extends for 471-kilometers from Ontario to Indiana. Although nearly 900 of those defects had since been addressed, the NTSB found the 2010 rupture was caused by external corrosion at a site overlooked during the course of repairs.

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